July 27, 1983, Somewhere in New Jersey.  I am aboard Amtrak’s Garden State Special from Philadelphia to New York. A few hours ago I completed the two‑day culmination of the worst eight weeks of my life — the Bar Exam.

Some of today’s questions are still floating around in my mind but, surprisingly, only a few. Veterans of the experience tell me that by tomorrow virtually all the assorted rules of law will leave me, as though written in disappearing ink.

What really occupies me now, though, is not the law or the questions, but the process. Over the last eight weeks I have gone through an unpleasant, dehumanizing experience ‑- with no apparent benefit.

There was a time when law school and clerkships prepared one to sit for the Bar. Nowadays, candidates prepare for the semi‑annual ordeal with expensive Bar review courses starting about two months in advance of the exam. The sole purpose of these courses is to help candidates pass the Bar Exam. Any law picked up along the way is purely incidental, accidental, and transcendental.

To get us through, the courses provide grossly over‑simplified rules, mnemonics, and bizarre, yet memorable illustrations. They also give examinees a peek inside the Bar examiners\’ heads by revealing past methods and tricks.

Questions from the essay half of the exam are routinely released by each state’s examiners. However, for the most part, the 200 questions from the Multi‑state portion are kept secret by the Princeton‑based Educational Testing Service which administers the multiple‑choice part of the exam in 44 states. The review courses manage to get around this secrecy, though. They “de‑program” examinees after each test. As a result, reviewers are able to reveal the tricks, the “always wrong” answers, the red herrings, and even the distribution of sub‑topics within the general areas tested.

The review instructors acknowledge that the Bar is nothing more than the final hazing before induction into the fraternity. A pre‑exam “Good Luck” letter from the New York offices of the nation’s largest review course characterized the New York Bar Exam as “an endurance test … designed to shake you up, to gauge how you react under the gun.”

If this sort of activity is what it takes to pass the Bar Exam, what good is it? Tricks, short‑term memory enhancers, and refined test‑taking skills do not bestow any benefit on the legal profession.

This should not be taken as condemnation of the review courses. The Bar Examiners invite this activity when they require candidates to jump through meaningless hoops. Their testing behavior makes the examiners fair game, and the use of anything short of cheating is legitimate in the battle for Bar survival.

Even if most of what is learned in preparation for the Bar were not soon forgotten, little is the sort of law which will be useful in practice. Renowned trial lawyer Irving Younger prefaced a lecture on the New York statutes of limitations by pointing out that, in real legal practice, failure to verify these statutes would be grounds for disbarment. Then to what end do we commit to memory ever‑changing details which always must be looked up or researched in the course of the actual practice of law?

Its supporters would also be hard pressed to justify the Bar as a grand final exam for law school. Law schools teach the law in terms of philosophy, theory and broad‑based rules. Law professors shun that which they refer to as “black letter law” — precisely what the Bar tests. Anyone. can look up cases and statutes, they say. The important thing is to be able to think like a lawyer.

Twenty years ago the Bar was an essay exam demanding wide‑ranging analysis.

Today, half the exam is multiple choice — a testing style which punishes innovative thought. Even the modern essays are closer to multiple choice questions than to the type of essays expected in law school. Any law student who wrote an essay consisting solely of the issue, the applicable rule of law, a brief discussion applying the rule to the facts, and the outcome of the suit, would be lucky to garner a ‘C’ from a law professor. But on the Bar, this is the formula for full credit.

Nonetheless, perhaps all this senseless tail‑chasing could somehow be excused if it were not for the toll the Bar takes of its candidates. The Bar transforms competent, intelligent, self‑assured students into frenzied rats, desperately trying to wend their way through a mental maze. In the past eight weeks, I have seen all manner of neurotic behavior fostered by the Bar: some reacted by going on eating binges, while others lost their appetites; many also became insomniacs — a condition the incidence of which increased geometrically as B‑Day approached. A once‑happy law student couple found themselves forced to study apart and avoid any discussion of the law because his compulsiveness dramatically increased her natural nervousness. Normally efficient people suddenly became unable to study effectively. Sometimes the condition even blossomed into intellectual paralysis. And, if my circle of friends is representative, chiropractors and ophthalmologists across the country are due for an early August business boom.

Lest we be lulled into thinking that the misery ended with the handing‑in of our test papers, the Bar examiners have arranged for our purgatory to continue. For most of us, the results will not be out until sometime after Thanksgiving. The impact of this long wait is hard on everyone, but particularly so on those who do not yet have a job. For the next four months the already tight legal job market is virtually closed to anyone not already admitted. Employers who have waited this long generally find it to their advantage to wait just a it longer in order to hire a known quantity.

From the employer’s point of view this is quite a logical approach. An unadmitted attorney is not permitted to perform many of the functions an employer might desire, and if the candidate fails the Bar, the period of incapacity will be extended by at least another six months. Additionally, the new employee’s services will be lost during the study period for the next exam.

Another problem with this seemingly endless wait is that many public sector employers will not even consider candidates before admission to the Bar. Consequently, a person headed for a large firm frequently has secured a position in November of the third year of law school, while a class‑mate hoping for employment as a public defender in Baltimore or Phoenix will not hear until more than a year later. This disparity flows both from the timing of release of Bar results and the constraints limited resources place on most public sector employers.

There is some hope on the horizon, though. This year California is experimenting with a new component to its Bar Exam. In addition to the traditional local essays and the Multi‑state section, California candidates will sit for a third day. The exam on this day consists of writing a research memorandum using a packet of pre‑selected cases and statutes. The student must read and analyze the actual law, then apply it to a factual situation. This format comes closest to anything yet proposed in truly testing that which lawyers do.

If Voltaire [or Leibniz?] were writing the Bar Exam, the Best of All Possible Bar Exams might consist of a memorandum similar to the California experiment and a more law school‑like variation on the local essays. This second part would serve the purpose of testing knowledge of local law, but in a way that would reward creativity and in‑depth analysis. The format would demand less in the way of formal structure and test fewer issues, allowing more time to delve into a question.

Actually, the best of all possible worlds already exists. Wisconsin is one of the few remaining states which grants admission to its Bar upon receipt of a degree from one of its two law schools. Even though there is this automatic admission, Wisconsin has not emasculated the curriculum of its law schools by turning them into three‑year local law Bar review courses. Both Wisconsin’s institutions are what are known as “national” law schools. This means they do not focus on local or “black letter” law. Rather, they teach an over view of legal thought and development, much like Harvard or Yale. Thus, the Wisconsin graduate’s education does not suffer as a result of the degree admission policy. In fact, other states Wisconsin attorneys like those admitted anywhere else — by granting admission to their Bar upon application after five years of practice.

The only logical conclusion to be drawn is that the Bar Exam is superfluous, and everyone knows it. Nonetheless, the powers that be continue to trivialize the profession by imposing this needless little initiation rite.

As we pull into Penn Station, two thoughts are upper‑most in my mind. One, I am not going to forget this indignity. Someday I wi1l do my part to rehumanize the process of becoming a lawyer. And two, I sure am glad I did not opt to take two Bars,  otherwise I would be facing the New Jersey essays in twelve hours!

Postscript: In October of 1983 I got a letter that I had passed the Pennsylvania Bar. Indeed, I benefitted from Pennsylvania’s — to my mind — illogical rule that a high enough score on the Multi-state portion resulted in passage without even considering the essays. On some level I was disappointed that my brilliant essays ended up falling in the forest without making a sound.  Also, despite my commitment, I have not done anything to change the Bar exam, although in my teaching of trial advocacy to law students and in presenting continuing legal education courses, I hope I have contributed to that promised humanization.

P.P.S.  Julianne passed the bar!

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♦ The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defense.”

♦ The right to assistance of counsel was part of James Madison’s original proposed Bill of Rights presented in a speech to Congress on June 8, 1789.

♦ Alexander Hamilton (no relation to Andrew Hamilton, the original “Philadelphia Lawyer”), argued against having a Bill of Rights in Federalist No. 84, because, in part, of his concern that the failure to mention other rights would imply they were not protected.  This concern led to the inclusion of the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

♦  The Ninth Amendment has seen a new resurgence this year as it is being held out as justification for some states refusing to abide by certain federal laws and regulations.

♦ It was not until 1938 that the Supreme Court confirmed that the Sixth Amendement right to counsel in all federal prosecutions included providing counsel to defendants who could not afford to hire an attorney.  The opinion was written by Associate Justice Hugo Black.  Johnson v. Zerbst, 304 U.S. 458 (1938).

♦  Before 1932, the Sixth Amendment right to counsel only applied to federal prosecutions.

♦ In Powell v. Alabama, 287 U.S. 45 (1932), the Supreme Court ruled that 14th Amendment due process included a meaningful right to counsel in capital cases.

♦ Powell was the famous case of the Scottsboro Boys, nine black men who were charged with raping two white women on freight train traveling through Alabama.  Eight of the nine were sentenced to death following one day trials of three defendants each.  The defendants actually had lawyers appointed at trial, but not during the six days between arraignment and trial. The Supreme Court held that due process required timely appointment of counsel for capital defendants who could not afford to retain counsel.

♦ In Betts v. Brady, 316 U.S. 455 (1942) the Supreme Court declined to extend Powell and declared that the right to appointed counsel did not generally extend to non-capital cases, unless trial without a lawyer, after “appraisal of the totality of the facts in a given case [demonstrates] denial of fundamental fairness, shocking to the universal sense of justice…” Later cases held that such denial required a showing of “special circumstances” like illiteracy, ignorance, youth, mental illness, complexity of charges or misconduct of the prosecutor.  Justice Hugo Black dissented in Betts.

♦ In 1961 Clarence Earl Gideon was a fifty-one year-old white man, charged with burglary of a bar in Panama City, Florida.  He was a four time convicted felon who had been in and out of jail much of his life.

♦ When his case was called to trial on August 4, 1961, Gideon informed the judge that he was not ready for trial because he did not have a lawyer.  When pressed to explain, he said he could not afford a lawyer and asked the judge to appoint a lawyer, incorrectly stating that “the United States Supreme Court said I am entitled to be represented by counsel.”  The judge informed him there was no such right and the case proceed to trial.

♦ As the Supreme Court later explained: “Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State\’s witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument ‘emphasizing his innocence to the charge contained in the Information filed in this case.’ The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison.” 372 U.S. at 337.

♦ Gideon appealed to the Florida Supreme Court, which denied him relief without opinion.

♦ On January 8, 1962, the Clerk of the United States Supreme Court received Gideon’s five page, handwritten in pencil petition for a writ of certiorari asserting a denial of due process in the refusal of the Florida judge to provide him an attorney.  Gideon asserted no “special circumstances”.  Gideon’s petition was one of nine such in forma pauperis petitions received by the Court that day.

♦ The State of Florida filed no response to the petition during the routine 30 day hold period.  However, when the petition was then sent to the chambers of Chief Justice Earl Warren, he directed the Clerk to write the Florida attorney general requesting a response.

♦ Florida responded that the case was controlled by Betts, and that Gideon had alleged no special circumstances.  Gideon responded: “it makes no difference how old I am or what color I am or what church I belong to if any.  The question is I did not get a fair trial.  The question is very simple.  I requested to the court to appoint me [an] attorney and the court refused …”

♦ On June 4, 1962, the Supreme Court granted Gideon’s motion to proceed in forma pauperis and petition for writ of certiorari on the question of: “Should this Court’s holding in Betts v. Brady, 316 U.S. 455, be reconsidered?”

♦ The Court appointed Washington power lawyer and experienced Supreme Court litigator, Abe Fortas.

♦ The Florida attorney general wrote the attorney generals of the other 49 states, seeking friend of the court (amicus) briefs in support of Florida’s position that the right to counsel presented by Gideon was an issue of states’ rights, and that Betts should not be overturned.

♦ Several attorneys general responded that they were considering filing an amicus brief.  The attorney general of Minnesota, however, responded: \”Since I firmly believe that any person charged with a felony should be accorded the right to be represented by counsel regardless of his financial condition, I would welcome the courts’ imposition of a requirement of appointment of counsel in all state felony prosecutions.”  That man was future senator and vice-president, Walter F. Mondale.

♦ Mondale’s correspondence with the Florida attorney general was the impetus for an amicus brief supporting Gideon drafted by several Harvard Law School professors, which was ultimately signed by twenty-three states.  Only two states, Alabama and North Carolina, ended up signing an amicus brief supporting Florida.  That brief, drafted by the Alabama attorney general, stated the view that an indigent defendant without counsel “stands a better chance of obtaining from a jury either an outright acquittal or less severe punishment than one represented by an attorney… [and only a  few lawyers would be] equal matches for career prosecutors.”

♦ The ACLU filed an amicus brief which included a survey of state court decisions under the Betts “special circumstances” test.  Of one-hundred such appellate decisions, only eleven found special circumstances.  Only one Pennsylvania case, out of forty-four, was found to present special circumstances, with three having been remanded for a hearing.

♦ After the grant of certiorari but before argument, Justice Felix Frankfurter, a strong supporter of states rights and Betts, retired from the Court.  President Kennedy appointed Secretary of Labor Arthur J. Goldberg as his replacement to the so-called “Jewish seat”, previously held by Justice Benjamin N. Cardozo.

♦ In 1965 liberal lion, Harvard economist and advisor to presidents, John Kenneth Galbraith, recommended Justice Goldberg to President Johnson to fill an opening as Ambassador to the United Nations.  Goldberg was replaced on the Supreme Court by Gideon lawyer Abe Fortas.  Fortas was later forced to resign from the Court due to an ethics scandal.  Galbraith came to regret his role in Goldberg leaving the Court, later writing: “I did little for liberalism that morning.”

♦ The Supreme Court heard oral argument in Gideon on Tuesday, January 15, 1963.

♦ The case was filed as Gideon v. Cochran, but was changed after oral argument when Louie L. Wainwright was named the new Director of the Florida Division of Corrections.

♦ On Monday, March 18, 1963, Justice Hugo Black, the author of an impassioned dissent in Betts twenty-one years earlier, announced the decision of the Court overruling Betts.  There were concurring opinions by Justices William O. Douglas, Tom C. Clark and John Marshall Harlan.  There were no dissenters.

♦ In the wake of Gideon, the battle then shifted to funding for counsel for the indigent.  On May 22, 1963, Attorney General Robert F. Kennedy testified about appointed counsel in the federal system:  “Federal courts today continue to delegate the defense of the underprivileged to assigned counsel who are not paid for their services.  They are not reimbursed for their out-of-pocket costs.  They do not receive a shred of investigative or expert help.  They are not appointed until long after arrest, when witnesses have disappeared and leads grown stale.  They often lack the trial experience essential for a competent defense.”

♦ Two months after Gideon, Florida passed a statute creating a public defender in each of the state’s sixteen judicial circuits.

♦ When the case was called for trial on remand before the original trial judge, Gideon refused to be represented by two ACLU lawyers, including one involved in the Supreme Court amicus brief, and instead asked for appointment of local lawyer W. Fred Turner.

♦ Turner investigated the case, hitting the streets himself, and even picking pears with the key prosecution witness’ mother in her backyard to gather information.

♦ State v. Gideon was retried on August 5, 1963.  Turner, who declined to make an opening, cross-examined the prosecution witnesses, presented a surprise defense witness to impeach the State eye-witness, called Gideon and made closing argument.  After deliberating for 65 minutes, the jury returned a verdict of Not Guilty.  Gideon was freed after nearly two years in the state penitentiary.

♦ Nine years later, in another Florida case, the Supreme Court held that defendants may not be imprisoned if they did not have counsel, thus extending Gideon to misdemeanors and many so-called petty offenses where defendants face incarceration.  Argersinger v. Hamlin, 407 US 25 (1972).  Gideon had died five months earlier.

♦ “If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court; and if the Supreme Court had not taken the trouble to look at the merits in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter; the court did look into his case; he was re-tried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed.”  Robert F. Kennedy, November 1, 1963.

♦ New York Times Supreme Court Reporter Anthony Lewis wrote a book on the case called Gideon\’s Trumpet.  The book has been continuously in print since it was first published in 1964.  It was made into a 1980 TV movie starring Academy Award winners Henry Fonda as Gideon, José Ferrar as Abe Fortas and John Houseman as the Chief Justice.  Lewis died in March 2013, shortly after the 50th Anniversary of the decision in Gideon.

*Gideon’s Trumpet was a source material for some of the information in this article.

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